McGinnity v. Dowd

182 N.W. 938, 47 N.D. 554, 1921 N.D. LEXIS 129

• Court: North Dakota Supreme Court
• Decided: May 2, 1921
• Status: Published

Opinions

Robinson, Ch. J.

This is an appeal from a judgment entered on an order sustaining a demurrer to the complaint and from an order denying leave to serve and file an amended complaint.

The complaint avers that in January, 1913, in the district court of Williams county, in an action for an assault and battery, the defendant wrongfully and by fraud and perjury obtained a judgment against the plaintiff for nearly $7,000; that in said action Dowd imposed on the court by falsely claiming that he was permanently injured and that his mind was permanently injured, and that after a final hearing and determination of the case by the supreme court his mind at once became normal; and that plaintiff has sustained damages to the amount of $10,000 by reason of the judgment against him, and attempts to collect the same.

As it appears, the facts in the case are these: Ten years ago, on a side street in the village of Tioga, in Williams county, the parties met. Plaintiff threw off his coat, and, with the swiftness and strength of a tiger, he sprang upon defendant, knocked him down with one blow, beat him, and pounded him against the hard, stony street so that he became and remained unconscious for an hour. He was beaten, as they say, within an inch of his life. In January, 1913, in an action for the beating, in the district court of Williams county, Dowd obtained a judgment for damages $6,550, and interest, or nearly $7,000. In April, 1915, the judgment was affirmed by the supreme court. Dowd v. McGinnity, 30 N. D. 308, 152 N. W. 524. On a review of the record and the evidence,.this court held that the verdict against McGinnity was well sustained by the evidence. The testimony, as cited, shows one witness testified thus: “I first saw McGinnity lay off his coat. Dowd was standing perhaps a rod or two from him. As McGinnity dropped his coat he started to run toward Dowd. Dowd raised his arms to his face. McGinnity struck him and knocked him down. Dowd fell on his side and rolled over onto his face. Mc-Ginnity took hold of his neck and chucked his face into the street several times. Then rolled him over onto his back. Then he took hold of his neck or clothing somewhere about the neck, and raised him high enough so that his head hung from the ground a few inches and hit him in the face again. The street along there was apparently a very hard street. I was xvatching the case. There was no obstructions to my view. Dowd made no offer to strike McGinnity. He tried to protect his face from the blow at the time McGinnity struck him. He did not try to throw the blow aside. He made no attempt to parry the blow.”

Dr. Stobie testified that he and Mr. Nesseth picked up Dowd, carried him to the doctor’s office, examined him and found on him several cuts and bruises, — a cut on the lip about a quarter of an inch deep, clear through the lip, a broken nose, an injury to the skull over the left eye. He testified Dowd remained unconscious for about an hour, and was unable to leave the hotel for about ten days. ' Later he went for treatment to Rochester, Minnesota.

The complaint is in the nature of a bill of review. It asks the court to review the case, to cancel the judgment and award the plaintiff $10,000 damages. Before commencing such an action the plaintiff must obtain leave of the supreme court and of the trial court, and the complaint must show that such leave has been granted. Leave to file a bill of review will not be granted unless on a showing that is both equitable and conclusive. A bill of review may be allowed by the supreme court that' has affirmed a conviction for murder, when it appears that the person supposed to be murdered is alive. So, in ■ case of a judgment for a death loss on an insurance policy, the proper court may allow a bill of review when it conclusively appears that the insured is not dead. 16 Cyc. 523-534.

Counsel for plaintiff relies on the Callicotte Case, 16 A.L.R. 386, 267 Fed. 799. In that case it was alleged and proved that at the time of the trial Callicotte, being aided by conspirators, feigned paralysis of his lower limbs and by the use of drugs produced an apparent paralysis, which could not be detected from the real paralysis. Callicotte kept himself secreted in his house so that his true condition could not be ascertained, while during the time ho had the perfect use of his limbs and made use of them at will. That by such means he deceived his own doctors, whom he called as witnesses. He deceived the court and the jury. By such means he presented a false case and prevented the defendant from proving his own case. 267 Fed. 802.

This case is wholly different. In neither the complaint nor the proposed amended complaint are there any facts stated showing a conspiracy to manufacture evidence,- to deceive the court, or to testify falsely. There is no showing to contradict the testimony that Dowd was beaten till he became unconscious; that his nose was broken, his lip cut, and his head injured. In short, there is no showing that the supreme court was wrong in holding that the damages were not excessive. Neither the complaint nor the amended complaint makes attempt to show the nature and extent of the injury to Dowd. True it is averred that plaintiff did not commit an assault and battery upon Dowd, and that the verdict was obtained by fraud and perjury; but that is the very matter that has been tried and determined against the plaintiff. The complaint shows no equity. It deals merely in generalities. On matters not extraneous to the trial and the record, the court is asked to reopen the case and to try anew the assault of ten years ago, and to award plaintiff $10,000 damages.

In the Tuttle Case, — N. D. —, 181 N. W. 898, recently decided by the court, the plaintiff sought to recover $300,000, and interest for twelve years, on the ground that defendant had wrongfully obtained a judgment of divorce in a case where it was alleged the court had no jurisdiction. This court held that the judgment imported absolute verity which overcame the averments against it, and that it was not subject to such a collateral attack.

As this court holds, the trial court was right in sustaining the demurrer and in dismissing the action. Affirmed.